CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 avril 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 12732/87                       by Marja ATSMA                       against the Netherlands             The European Commission of Human Rights sitting in private on 13 April 1989, the following members being present:                 MM. S. TRECHSEL, Acting President                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                Mr.   J. RAYMOND, Deputy Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 12 February 1987 by Marja ATSMA against the Netherlands and registered on 12 February 1987 under file No. 12732/87;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:     THE FACTS           The applicant is a Dutch citizen, born in 1961 and at present residing in Amsterdam.   She is represented in the proceedings before the Commission by Mr.   G. Hamer, a lawyer, practising in Amsterdam.           The facts, as submitted by the applicant, may be summarised as follows:           In October 1985 the applicant had been detained for some time in a prison (Penitentiaire Inrichting).   During her detention the man with whom she had cohabited before her detention frequently visited her.           On 22 October 1985 he visited the applicant again. During this visit one of the warders thought he saw the applicant receiving a parcel from the visitor.   A violent struggle between the warders and the visitor ensued.   After a search   of the applicant and her visitor no parcel was found.           By letter of 23 October 1985 the Director of the prison informed the applicant's friend of her decision not to permit further visits to the applicant during her detention.   The applicant was punished by solitary confinement for seven days.           By letter of 5 November 1985 the Deputy Director of the prison informed the applicant of his decision not to allow the applicant's friend to visit her during the rest of her detention.           On 8 November 1985 the applicant lodged a complaint with the Supervisory Commission (beklagcommissie) of the prison.   On the same day she asked the "Month Commissioner" ("maand-commissaris") of the prison to suspend the decision not to allow the applicant's friend to visit her.   The Month Commissioner did not suspend this decision.           By decision of 28 November 1985 the Supervisory Commission declared the applicant's complaint well-founded.   It held that under the Prison Measure (Gevangenismaatregel) a detained person should be informed of a decision not to allow certain persons to visit him within 24 hours, in writing and with a statement of the reasons. Since these requirements had not been met, the decision of the Prison Board was null and void.           The Supervisory Commission announced that its President would consider whether any compensation should be awarded, in consultation with the Director of the Prison, in accordance with Section 57 para. 3   of the Principles of the Prison System Act (Beginselenwet Gevangeniswezen).           By letter of 9 December 1985 the Director of the Prison informed the applicant that her friend could again apply for visits.           By letter of 23 January 1986 the Secretary of the Supervisory Commission informed the applicant that a decision on compensation had not yet been taken as the Director of the Prison was on holiday.             On 27 January 1986 the applicant was released.           On 25 March 1986 the President of the Supervisory Commission decided that no compensation would be granted to the applicant as the applicant's complaint against the decision not to allow her friend to visit her had been declared well-founded on merely formal grounds and that he found the decision a reasonable one in the circumstances.           On 2 April 1986 the applicant appealed to the Prison System Section of the Central Advisory Council for the Prison System, the Care of Psychopaths and the Rehabilitation of Convicts (Centrale Raad van Advies voor het Gevangeniswezen, de Psychopathenzorg en de Reclassering).   She submitted, inter alia, that the President of the Supervisory Commission had taken his decision contrary to Article 6 of the Convention because he had taken his decision in consultation with the Director of the Prison without even hearing the applicant.           By letter of 15 April 1986 the applicant requested the Central Advisory Council to hold a public hearing in her case, invoking Article 6 of the Convention.           By letter of 13 May 1986 the Secretary of the Appeal Commission of the Prison System Section of the Central Advisory Council informed the applicant that her case would be dealt with in writing.   He submitted that Article 6 was not applicable in her case since the determination of compensation in connection with a complaint that had been found well-founded did not amount to a determination of "civil rights and obligations" or "any criminal charge".           By letter of 16 May 1986 the applicant asked the Secretary of the Appeal Commission of the Prison System Section of the Central Advisory Council for a report on, or the records of, proceedings of the consultation between the President of the Supervisory Commission and the Director of the Prison and the documents sent between them concerning the compensation decision.   By letter of 22 May 1986 the Secretary of the Appeal Commission of the Prison System Section of the Central Advisory Council informed the applicant that the only existing written document was the decision on compensation itself.           By letter of 21 May 1986 to the Secretary of the Appeal Commission of the Prison System Section of the Central Advisory Council the applicant explained her appeal further.   She invoked Article 8 of the Convention.           By decision of 14 August 1986 the Appeal Commission of the Prison System Section of the Central Advisory Council rejected the applicant's appeal.   It held that the Director of the Prison could reasonably have taken the decision.   It also held that Article 6 of the Convention was not applicable to procedures concerning the establishment of compensation conducted after a complaint procedure in which the parties could be heard.   COMPLAINTS   1.       The applicant complains that the President of the Supervisory Commission took his decision in consultation with the Director of the Prison, who was one of the parties in the conflict concerning the visits of the applicant's friend, whilst not consulting the applicant; that the President of the Supervisory Commission waited to decide on compensation until the Director of the Prison had returned from holiday, which made compensation during her detention impossible; that neither the President of the Supervisory Commission nor the Central Advisory Council pronounced judgment publicly; that in their decisions, the President of the Supervisory Commission and the Central Advisory Council considered that the decision of the Director of the Prison was reasonable, despite that the Supervisory Commission had before declared that the decision was null and void and, therefore, non-existent, and, that no public hearing took place before the Central Advisory Council and that she, therefore, could not orally explain her case.           The applicant invokes Article 6 of the Convention.   She submits that under Section 57 para. 3 of the Principles of the Prison System Act, the President of the Supervisory Commission has to consider whether compensation is possible, after the Supervisory Commission has revised a decision upon a complaint by a detained person where either a disciplinary punishment has been executed in whole or in part, or the consequences of said decision can no longer be undone.   In special cases a monetary compensation may be granted. The applicant submits that she, therefore, has a right to compensation.   This right is a "civil right" within the meaning of Article 6 of the Convention, in her view.   2.       The applicant complains that the decision of the Director of the Prison not to allow the applicant's friend to visit her anymore amounted to an interference with the applicant's private and family life.   This interference was not in accordance with the law since the applicant was not informed of the decision within 24 hours in writing, as required by the Prison Measure.   Since the President of the Supervisory Commission and the Central Advisory Council did not grant any compensation, they let the violation pass unperceived and, therefore, no effective remedy was available.   The applicant invokes Articles 8 and 13 of the Convention.   THE LAW   1.       The applicant has complained of the proceedings before the President of the Supervisory Commission and the Central Advisory Council concerning compensation for a decision to impose a disciplinary punishment that had been declared null and void.   The applicant has invoked Article 6 (Art. 6)of the Convention.           Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides:   "In the determination of his civil rights and obligations..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".           The Commission notes that, under Section 57 para. 3 of the Principles of the Prison System Act, the President of the Supervisory Commission has to consider whether compensation is possible, after the Supervisory Commission has revised a decision upon a complaint by a detained person where, either a disciplinary punishment has been executed in whole or in part, or the consequences of said decision can no longer be undone.   In special cases a monetary compensation may be granted.   Accordingly, the Commission observes that no right to any particular compensation exists.           Consequently, the Commission is of the opinion that the proceedings at issue did not concern the determination of any civil right of the applicant and, therefore, fall outside the scope of Article 6 para. 1 (Art. 6-1) of the Convention.           It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.     2.       The applicant has complained of an interference with her private and family life contrary to Article 8 (Art. 8) of the Convention.           In respect of Article 8 (Art. 8) the Commission notes that on 23 October 1985 the Director of the prison informed the applicant's friend that he was no longer allowed to visit the applicant.   By letter of 5 November 1985 the applicant herself was informed of this decision.   By decision of 28 November 1985 the Supervisory Commission declared the decision null and void.   By letter of 9 December 1985 the Director of the Prison informed the applicant that her friend could again apply for visits to her.           The Commission concludes that the applicant obtained adequate redress at the domestic level for the alleged violation of Article 8 of the Convention.   She is therefore no longer able to claim to be a victim within the terms of Article 25 para. 1 (Art. 25-1) of the Convention.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant has further complained that no effective remedy was available to her since she did not receive any compensation for the alleged lack of respect for her private and family life.   She invokes Article 13 (Art. 13) of the Convention.           Article 13 (Art. 13) of the Convention is worded in the following terms:   "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."           It is established case law of the Commission that the word "remedy" in this sense does not mean that the applicant's claim must be vindicated and that the applicant must "win" (No. 10496/83, Dec. 14.5.84, D.R. 38 p. 189).           The Commission notes that in the present case the applicant lodged a complaint with the Supervisory Commission against the decision of the prison board not to allow her friend to visit her. This complaint was successful to the extent that the decision was declared void and that as from 9 December 1985 on the applicant's friend could again apply for visits to her.   The complaint was not successful to the extent that no compensation, for example monetary compensation, was granted to the applicant.           An examination by the Commission of this complaint as it has been submitted does not therefore disclose any appearance of a violation of Article 13 (Art. 13) of the Convention.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE     Deputy Secretary to the Commission      Acting President of the Commission                 (J. RAYMOND)                             (S. TRECHSEL)